A pox on both their motions.

Leading up to this legal malpractice action, defendant-attorney had let a year pass without moving for a default judgment in the underlying action, alleging an injury on premises leased to plaintiff's employer by out-of-possession owners, and, as a result the underlying action was dismissed as abandoned pursuant to CPLR 3215(c).

Defendant concedes that his failure to move for a default judgment was negligent, but argues that there was no resulting harm to plaintiff because the underlying action was not viable. The First Department rejected this argument, in Rodriguez v. Killerlane, which was decided on October 11, 2007. In denying summary judgment to defendant, the court said defendant incorrectly assumes, solely on the owners' out-of-possession status, that the owners had no duty to remedy the alleged hazard, namely, old and rusty pipes that froze and cracked due to a lack of heat.

However, the court also denied plaintiff's cross motion for summary judgment. Plaintiff had argued that defendant's liability was established, as a matter of law, by his negligence in failing to timely move for a default judgment and the resulting dismissal of the underlying action. The court said that this argument ignored the possibility that the owners might have successfully opposed a motion for a default judgment, had one been made, or successfully vacated a default judgment, had one been entered. The court said that, accordingly, plaintiff did not meet the required 'but for' standard of proof in a legal malpractice matter: but for the attorney's negligence, plaintiff would have been successful. The only proof of the owners' liability presented by plaintiff was defendant's initial optimistic assessment of the merits and value of plaintiff's case, and that this was insufficient to establish the merits of the underlying action.